DOD 'Transgender Ban' Set To Take Effect In April Law360 (March 13, 2019, 5:20 PM EDT) -- The
U.S. Department of Defense announced it will implement its contentious policy heavily restricting the service and recruitment of transgender troops on April 12, despite the D.C. Circuit having yet to rule on whether it will rehear a dispute related to the policy. The DOD confirmed Tuesday that it intends to put its March 2018 transgender policy into effect on April 12, following the leak of a related memorandum, drawing sharp criticism from challengers to the policy. Those challengers argued that the move to implement the policy — which they claim is effectively a "transgender ban" — defies a court order. The disputed policy allows transgender people to join or serve in the military only if they don't have gender dysphoria — a disconnect between biological sex and the gender with which they identify that causes distress — and have not already transitioned between genders, with limited exceptions for current troops.
While the D.C. Circuit had vacated a preliminary injunction that had prevented the policy going into effect after finding that a district judge had not given sufficient credit to the DOD's efforts to address issues with an earlier version of the disputed policy, the appeals court has not yet issued a formal mandate for that January judgment, giving the parties time to potentially seek a rehearing.
"With brazen disregard for the judicial process, the Pentagon is prematurely and illegally rolling out a plan to implement the ban when a court injunction remains in place prohibiting them from doing so," Jennifer Levi, director of GLBTQ Legal Advocates & Defenders' Transgender Rights project, said in a statement Wednesday. Levi is co-counsel for the challengers in the circuit court case.
The DOD's move to implement the transgender policy comes after a Maryland federal judge on March 7 stayed the last of four preliminary injunctions against the policy going into effect, saying he was bound by a similar stay issued by the U.S. Supreme Court in January. But the D.C. Circuit, as mentioned by the challengers, is still yet to formally lift its injunction after having issued two concurring opinions on March 8 fleshing out its earlier judgment, which effectively argue over the level of deference that courts are required to give military decisions. The circuit court panel had given the parties 21 days to ask for a rehearing or en banc rehearing following those concurrences and its mandate will only go into effect a week after any petition for rehearing is resolved.
Legal challengers to the DOD's policy were not the only ones to slam the department's plan to implement the policy, with other LGBTQ advocacy and civil rights groups and Democratic lawmakers also criticizing the move. House Majority Leader Nancy Pelosi, D-Calif., said in a statement Tuesday that "the revival of [this] bigoted, disgusting ban on transgender servicemembers is a stunning attack on the patriots who keep us safe and on the most fundamental ideals of our nation."
The disputed policy stems back to a directive issued by then-Defense Secretary Ashton Carter in June 2016, allowing transgender servicemembers to serve openly for the first time. Carter said that the department had studied the issue and found that it would not affect military readiness, and that "Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so." President Donald Trump, however, claimed in a series of July 2017 tweets — later formalized in a presidential memo in August that year — that he would reimplement the ban on open service, citing purported negative effects on military readiness and unit cohesion, as well as allegedly "tremendous" related medical costs.
That prompted a series of lawsuits from current and prospective transgender servicemembers challenging the ban, arguing it violated their constitutional equal protection rights, and several district judges subsequently issued preliminary injunctions against the policy going into effect. In response, the administration issued its updated policy in March 2018, supported by the "Mattis plan," named after then-Defense Secretary James Mattis. The plan cites the opinions of a panel of military officials regarding how best to protect "lethality and readiness," and criticizes the RAND Corp. report that had underpinned the 2016 policy. District courts remained unmoved, however, finding the new policy to be substantially similar to the previous blanket ban, prompting the administration to appeal to the Ninth Circuit, D.C. Circuit and — in an unusual move — the Supreme Court, arguing that the district judges had not given sufficient respect to military decisions and that the injunctions should not apply nationwide.
The Ninth Circuit is still yet to rule on the injunctions stayed by the Supreme Court, with district courts also yet to make any merits rulings regarding the disputed policy. There is also legislation pending in Congress to effectively overturn the policy, although it has limited Republican support, meaning it is unlikely to gain traction in the Senate. Read more at: https://ift.tt/2TR6m8I
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